KARDEEP SINGH v. TORTURE CLAIMS APPEAL BOARD

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

 Leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant Kardeep Singh filed the Form 86 dated 7 January 2020 seeking leave for judicial review of the Decision of the Director of Immigration (“DoI”) dated 30 December 2019 against his non-refoulement claim.  In fact, the Decision of DoI was dated 21 December 2017, and the Decision of the Torture Claims Appeal Board (“TCAB”) was dated 30 December 2019.  His Affirmation dated 7 January 2020 exhibited TCAB’s decision dated 30 December 2019.

2.  The Applicant was born in Punjabi India in 1991.  In 2008 his father died and he inherited the land. Shortly after, Harnek demanded him to give up the land.  About 12 gangsters went to his home and threatened to kill him if he did not transfer the land. He left home to stay with a friend.

3.  Few months later, the friend noticed some strangers and suspected they were Harnek’s men.  Then Harnek came to his work place with 2 or 3 men, armed with hockey sticks, threatened to kill him unless he transferred the land.  They left since there were many people around.  In the same evening, he was intercepted by Harnek after work, and was attacked and lost consciousness.  He woke up in hospital with bruises and swelling but no wound.  He reported the matter to the police. He was told there was no progress in the investigation, and believed the police would do nothing.  He was transferred to another office, but was found out by Harnek, who threatened to kill him if he did not transfer the land.

4.  Between 2013-2015 he moved to work in the United Arab Emirates, and was told Harnek was still looking for him.  In 2015, he went back to India.  A few months later, he had a heated argument and fight with Harnek’s son on the transfer of land.  He moved to New Delhi again for 2 to 3 months, and was told Harnek had threatened his mother.  Then he left for Hong Kong.

5.  The TCAB considered his appeal on the comprehensive grounds: (1) the risk under Part VIIC of the Immigration Ordinance (Cap.115) (“torture risk”); (2) risk to his right to life under Article 2 of the Hong Kong Bill of Rights (Cap.383) (“BOR2 risk”). (3) risk of cruel, inhumane or degrading treatment or punishment (“CIDTP risks”) under Article 3 of the Hong Kong Bill of Rights (“BOR3 risk”); (4) risk of prosecution with reference to the non-refoulement principles under Article 33 of the Convention Relating to the Status of Refugees 1951 (“persecution risk”). 

6.  The TCAB noted that the case was about the dispute on land.  Harnek had threatened to kill him for 7 years but nothing happened.  He was assaulted but not to the extent of torture, let alone by state parties.  He could relocate himself in India which is a large country of 1.3 billion population.  The TCAB did not believe Harnek had such resources to locate him throughout India.

7.  Judicial review does not operate as a rehearing of the refoulement claim, but to consider whether the original decision maker(s) has erred in the law, irrationality in the decision(s) or procedural unfairness (see cases: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524).

8.  Neither the Form 86 nor the Affirmation stated any grounds of error of TCAB.  The Applicant was expatriated.

9.  Hence, leave is dismissed.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1